ORLANDO LOPEZ and ELIZABETH LOPEZ v. HEIDI BOND, STEPHEN CLARK, RICHARD GANDT, BOYD JACKSON, and JOHN J. MCARDLE, as they are MEMBERS OF TOWN OF TOPSFIELD BOARD OF SELECTMEN; TOWN OF TOPSFIELD; FRANK MARTINO; and KRISTI MARTINO

MISC 325006

February 13, 2009

ESSEX, ss.

Long, J.

MEMORANDUM AND ORDER ON DEFENDANTS TOWN OF TOPSFIELD'S AND TOWN OF TOPSFIELD BOARD OF SELECTMEN'S MOTION FOR SUMMARY JUDGMENT

Plaintiffs Orlando and Elizabeth Lopez bring this action pursuant to G.L. c. 240, § 14A, seeking a declaration that the Town of Topsfield Zoning By-law (the Bylaw) Article III, § 3.02, line 2.16 in the Table of Use Regulations (as amended on May 3, 2005) is invalid, unenforceable and unconstitutional. That section permits conference and event facilities by special permit in all zoning districts. Defendants Town of Topsfield and the Town of Topsfield Board of Selectmen (collectively, the municipal defendants) have filed a motion for summary judgment, arguing that the Bylaw is a reasonable land use regulation, which is facially valid and constitutes a lawful exercise of the Towns zoning authority. Defendants Town of Topsfield and Town of Topsfield Board of Selectmens Brief in Support of their Motion for Summary Judgment at 1 (filed Nov. 27, 2006) ( Defendants Brief). For the reasons set forth below, I ALLOW the defendants motion.

Plaintiffs Orlando and Elizabeth Lopez own the property located at 93 Main Street in Topsfield. Defendants Frank and Kristi Martino own the abutting property located at 4 North Commons Street. On April 7, 1994, the Martinos received a building permit, which states that they can use the first floor of their property as a residence and the second floor for assembly uses. On August 24, 2000, the Zoning Board of Appeals issued a decision, which allowed the Martinos to continue to use their property for assembly purposes and imposed conditions on such uses. [Note 1]

At the May 3, 2005 Annual Town Meeting, Bylaw Article III, § 3.02 (Table of Use Regulations) was amended to, among other changes, [Note 2] allow conference and event facilities [Note 3] by special permit in all zoning districts. [Note 4] The Martinos have applied for a special permit under this section in order to use their property as a residential and wedding facility. Special Permit Application, attached as 1 to the Aff. of Orlando Lopez (Ex. A of the appendix to the plaintiffs Memorandum in Opposition to Defendants Town of Topsfields Motion for Summary Judgment). If the Martinos receive a special permit under this section, the plaintiffs claims in pending Miscellaneous Case Numbers 266300 and 266213, see note 1, supra, would likely be moot.

On June 19, 2006, the plaintiffs filed this action pursuant to G.L. c. 240, § 14A, claiming that Bylaw Article III, § 3.02, Use 2.16 is invalid, unenforceable and unconstitutional.

Analysis

The municipal defendants first challenge the plaintiffs standing to bring this suit. G.L. c. 240, § 14A provides, relevant to this case, the following:

The owner of a freehold estate in possession in land may bring a petition in the land court against a city or town wherein such land is situated . . . for determination as to the validity of a municipal ordinance, by-law or regulation, passed or adopted under the provisions of chapter forty A or under any special law relating to zoning, so called, which purports to restrict or limit the present or future use, enjoyment, improvement or development of such land, or any part thereof, . . . or for determination of the extent to which any such municipal ordinance, by-law or regulation affects a proposed use, enjoyment, improvement or development of such land by the erection, alteration or repair of structures thereon or otherwise as set forth in such petition. . . . The court may make binding determinations of right interpreting such ordinances, by-laws or regulations whether any consequential judgment or relief is or could be claimed or not.

Courts have broadly construed this statute and have held that not only can a landowner petition a court for a determination regarding the validity of a bylaw that applies to his or her own land, but G.L. c. 240A, § 14 also authorizes a petition by a landowner on whose land there is a direct effect of the zoning enactment through the permitted use of other land. Harrison v. Braintree, 355 Mass. 651 , 655 (1969) (emphasis added); see also Hansen & Donahue, Inc. v. Norwood, 61 Mass. App. Ct. 292 , 295 (2004); Mastriani v. Bldg. Inspector of Monson, 19 Mass. App. Ct. 989 , 990 (1985).

Here, the plaintiffs have shown that the Bylaw provision may have a direct effect on their use and enjoyment of the property. The Martinos have applied for a special permit under Bylaw Article III, § 3.02 to operate an event facility at their property, which is adjacent to the plaintiffs property. In other cases pending in this court, the plaintiffs have challenged the propriety of such use of the Martinos property, which would likely be rendered moot if the Martinos receive the special permit. The plaintiffs have also alleged that the use of the Martinos property for assembly purposes (holding wedding receptions and the like) have interfered with their quiet enjoyment of their property. Both Orlando and Elizabeth Lopez submitted affidavits that claim that the guests of functions at the Martinos property have caused excessive noise and have trespassed on the plaintiffs property and that complaints have been filed for such issues. Elizabeth Lopez also claims she was assaulted by a guest of a function held on July 20, 2001.

Finally, the plaintiffs allege that the use of Martinos property for events will result in traffic and parking problems. In support of this allegation, the plaintiffs submitted the affidavit of Michael R. Abend, a partner/owner of Abend Associates, a company that provides traffic and transportation planning services. Mr. Abend concluded that a row of parked vehicles along Main Street in Topsfield, in the vicinity of the North Common Street intersection, is a safety hazard at the North Common Street intersection. Aff. of Michael R. Abend at 2 (Jan. 23, 2007). Together, these concerns are sufficient to support the plaintiffs standing for summary judgment purposes. [Note 5] See Hanna v. Framingham, 60 Mass. App. Ct. 420 , 422-23 (2004).

However, the plaintiffs have not met their heavy burden of showing that the by-law is in conflict with (a) the enabling act, G.L. c. 40A, or (b) applicable constitutional provisions. Turnpike Realty Co. v. Dedham, 362 Mass. 221 , 233 (1972); see also Sturges v. Chilmark, 380 Mass. 246 , 256 (1980). In order to find Bylaw Article III, § 3.02 unconstitutional, either facially or as applied, the plaintiffs must prove, and I must find, that it is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. [Note 6] Turnpike Realty Co., 362 Mass. at 233 (quoting Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926). Furthermore, [e]very presumption is to be afforded in favor of the validity of . . . [a by-law] and if its reasonableness is fairly debatable the judgment of the local authorities who gave it its being will prevail. Id. (alteration in original). In reviewing the Bylaw, this court undertake[s] no inquiry into the possible motives of the legislative body. Hanna, 60 Mass. App. Ct. at 426. Rather, there need only be a showing in the record that there was any possible permissible legislative goal which may rationally be furthered by the regulation . . . . Sturges, 380 Mass. at 257. It is not, however, the municipal defendants burden to come forward with proof of those very circumstances whose possible existence it has sought time to investigate and they are restricted neither to the reasons expressed by its planning board . . . nor to arguments which were advanced on the town meeting floor. Id. at 257-58. [T]he burden was on the town only to make a prima facie showing of a rational basis for its action, which it has done. Id. at 259.

Here, Bylaw Article III, § 3.02 allows a conference and event facility by special permit. The municipal defendants argue that [a] conference and event facility is similar in function to other community facilities that are permitted in all residential zones within the Town. Many of these facilities, such as public recreation centers, libraries, museums, and civic social organizations, constitute public gathering places which serve a specific public function, such as recreation, education, or meeting places. It is plainly in the interest of a community to have a by-law which allows for these types of uses. Defendants Brief at 10-11. In the Annual Town Meeting Warrant, it is noted that [t]his amendment would make revisions that are designed to increase economic activity in selected areas by adding two new uses that would be allowed by special permit in all zoning districts: Nursing and Community Care Facilities, and Conference and Event Facility. Both uses could be utilized on large properties that otherwise might be residentially developed, and both uses could provide important community services. . . . Article 41 of the 2005 Annual Town meeting Warrant, Ex. 3 of Aff. of Beverly Ann Guarino (Nov. 22, 2006). Such interests certainly meet the minimal standard that the zoning provision has some reasonable prospect of a tangible benefit to the community. Sturges, 380 Mass. at 257. The provision of community services and generation of economic activity are certainly rational bases for the Bylaw amendment that relate to public purposes.

The plaintiffs have not met their heavy burden of showing a conflict with applicable constitutional provisions, Id. at 256, rather, they simply oppose summary judgment by stating that the the equivalence between an event facility and a community facility is a disputed fact. [Note 7] Memorandum in Opposition to Defendants Town of Topsfields Motion for Summary Judgment at 8-9 (filed Jan. 25, 2007). This argument misses the point. [Note 8] The municipal defendants have come forward with rational bases for the Bylaw amendment and the plaintiffs have not met their burden of showing that Bylaw Article III, § 3.02 is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. Sturges, 380 Mass. at 256. Based on this failure and the fact that [e]very presumption is made in favor of the by-law, Bylaw Article III, § 3.02 must be sustained. [Note 9] Id.

Conclusion

For the foregoing reasons, the plaintiffs have failed to show that Bylaw Article III, § 3.02 is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. Sturges, 380 Mass. at 256. Accordingly, Bylaw Article III, § 3.02 is hereby sustained and the motion for summary judgment is ALLOWED. Judgment shall issue accordingly.

SO ORDERED.

By the court (Long, J.)

Attest:

Deborah J. Patterson, Recorder

Dated: 13 February 2009

FOOTNOTES

[Note 1] That decision is the subject of two actions in this court  Miscellaneous Case Numbers 266300 and 266213. Those cases, which were consolidated, are currently under advisement.

[Note 2] The amendment also added the use Nursing and Community Care Facilities (§ 2.15) as allowed by special permit in all zoning districts and changed some uses in the business park zoning district from not permitted to permitted with special permit.

[Note 3] The Bylaw defines Conference & Event Facility as [a] facility used by individuals and service, social or professional organizations for seminars, meetings and professional conferences and social events. The facility may include associated accommodations for food preparation and service, sleeping areas, recreation and athletic facilities, all of which are provided exclusively for the use of patrons of the conference facility. Bylaw Article I, § 1.19.

[Note 4] Initially, the plaintiffs argued that they did not receive notice of the Annual Town Meeting. However, the municipal defendants stated in their statement of material facts that notice was published in the Tri-Town Transcript on March 31 and April 7, 2005. The municipal defendants included a copy of the legal notice to be published in the Tri-Town Transcript in exhibit 4 to the Affidavit of Beverly Ann Guarino, Town Clerk. In response, the plaintiffs stated that they do not admit to having []prior knowledge of notice but do not contest the Town Clerks affidavit. Plaintiffs Response to Defendants Statement of Material Facts and Plaintiffs Additional Statement of Material Facts at 2, ¶ 7 (filed Jan. 25, 2007). Accordingly, the plaintiffs have waived any claims they might have had with regards to notice of the Annual Town Meeting.

[Note 5] In light of this, I need not and do not decide whether the plaintiffs claims and evidence related to the Martinos septic system confer standing.

[Note 6] Since I have found a rational basis for the municipal defendants Bylaw amendment, I need not reach the second branch to the analysis of an as-applied challenge  that the plaintiffs have suffered a significant injury because the application of the by-law . . . would amount to an arbitrary, unreasonable and oppressive deprivation of the owners interest in his private property . . . . Amberwood Dev. Corp. v. Bd. of Appeals of Boxford, 65 Mass. App. Ct. 205 , 210 (2005).

[Note 7] The plaintiffs also contend that Bylaw Article III, § 3.02 fails to designate standards sufficient to serve as guides in the issuance of permit . . . . Memorandum in Opposition to Defendants Town of Topsfields Motion for Summary Judgment at 11-12 (filed Jan. 25, 2007). As a component of this argument, the plaintiffs contend that the town does not have any traffic studies on which to base the determination of undue traffic congestion [as required in Bylaw § 5.04]. Id. at 12. Likewise, the plaintiffs claim that the town has not produced any studies relating to septic systems in the central residence district or the business district. Id. These arguments fail. Bylaw Article V, § 5.04 provides numerous requirements that an applicant must meet in order to acquire a special permit. For example, an applicant must show that the use will not create undue traffic congestion or unduly impair pedestrian safety . . . [and] will not overload any public water, drainage, or sewer system . . . . Bylaw Article V, § 5.04B. Contrary to the plaintiffs argument, the town need not presently have traffic studies or septic system studies in order to adopt Bylaw Article III, § 3.02. Issues such as traffic and the adequacy of septic systems will be considered, on an individual basis, when an applicant applies for a special permit, as outlined in the special permit criteria.

[Note 8] Although this argument is not entirely clear, it also appears to reach issues in the plaintiffs G.L. c. 40A, § 17 actions and the merits of the Martinos application for a special permit. Neither the G.L. c. 40A, § 17 appeals, nor the Martinos application for a special permit, are part of this action, which presents only the single issue of whether Bylaw § 3.02 is valid facially and as applied to the Martinos property.

[Note 9] In their complaint, the plaintiffs also appear to argue that the Bylaw amendment constitutes illegal spot zoning. Such argument clearly fails since Bylaw Article III, § 3.02 applies to all properties in every zoning district. Bd. of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339 , 361-62 (1973) ([A] spot zoning violation involves more than a mere finding that a parcel of property is singled out for less restrictive treatment than that of surrounding land of similar character. It is a singling out of one lot for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner of that lot.).